Tennessee Gov. Bill Lee answers questions after he spoke to a joint session of the legislature at the start of a special session on education, in Nashville, Tenn. on Jan. 19, 2021.
Mark Humphrey—AP
March 29, 2022 6:32 PM EDT

Tennessee is poised to become the next state to enact a law controlling how “divisive concepts” are addressed on college campuses. Its recently passed bill, which could be signed into law in the coming weeks, would be the latest in a spate of legislation aimed at restricting how race and gender are discussed in schools. Over the last year, Republican lawmakers across the country have largely focused on the K-12 level when introducing such laws—but, as the Tennessee legislation demonstrates, proponents of “divisive concept” restrictions now have their sights set on higher education.

Last year, just 26% of such bills were directed at higher education institutions, and only three states passed those bills, according to a February analysis by PEN America, an organization that advocates for free expression. But this year, 46% of such bills have focused on higher education. As of March 28, at least 43 such bills aimed at higher education were under consideration in 21 states, according to a PEN America tracker. Opponents say the targeting of colleges and universities highlights what’s at stake with such laws.

The Tennessee bill, supported by Republican lawmakers, does not specifically restrict in-class speech by professors, but would prohibit students or employees at public colleges from being disciplined for refusing to support “one or more divisive concepts” and would allow them to sue public colleges and universities if they feel they have been unfairly punished. It would also prohibit universities from requiring training for students or employees that includes “divisive concepts.”

The bill identifies 16 divisive concepts, including the idea that Tennessee or the U.S. are “fundamentally or irredeemably racist or sexist,” and the idea that “an individual, by virtue of the individual’s race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or subconsciously.” The bill also requires that any university employee whose role is focused on promoting diversity must also work on strengthening intellectual diversity on campus.

The bill passed in both the Tennessee House and Senate this month and will now move to Gov. Bill Lee, a Republican who signed a similar law last year restricting how K-12 public school teachers can discuss racism and bias in the classroom.

A spokesperson for Lee said the bill has not been transmitted to the Governor’s desk yet, after passing in the Tennessee House on Monday. “We will review the final legislation in detail,” Casey Black, Lee’s press secretary, said in an email.

Supporters say the bill is aimed at protecting students from being punished for their views, but Democrats and others who oppose the measure warn it could silence professors, create legal issues for universities, and lead to conflict over vague definitions of what counts as “divisive.”

“Classes will be canceled. Professors will be censored. Course materials will be censored. It’s going to create a very unwelcoming environment,” says Jeremy Young, who has advocated against such legislation as senior manager of free expression and education at PEN America. “It’s just going to get worse.”

Young sees this recent legislation as part of a broader trend, tied to declining trust in institutions of higher education. Nearly 60% of Republicans say higher education has a negative effect on the U.S., according to a 2019 survey by Pew Research Center.

“This is all part of a bigger context of more significant attacks on higher ed from the political realm,” Young says. “There is a sense that it’s increasingly a political winner to attack.”

A similar piece of legislation, House Bill 1012, became law in South Dakota last week. It prohibits colleges from requiring trainings or orientations based on “divisive concepts” and from requiring students to agree with or adhere to those concepts.

“No student or teacher should have to endorse Critical Race Theory in order to attend, graduate from, or teach at our public universities,” Gov. Kristi Noem, a Republican, said in a statement. “College should remain a place where freedom of thought and expression are encouraged, not stifled by political agendas.”

But critics argue the law will encroach on academic freedom and hinder necessary discussions about systemic racism. And though critical race theory, a graduate-level academic framework that explores how institutions perpetuate racism, has become a particular target for restrictions of speech in educational institutions, opponents of such laws point out that debates on the topic are rarely about the actual theory.

“It opens the door for a wide range of interpretations that could be used to chill free speech and academic freedom, discouraging open and honest discussions about systemic racism in classrooms and in higher education communities,” Jett Jonelis, advocacy manager for the ACLU of South Dakota, said in a statement. “That House Bill 1012 passed shows the very need for the types of discussion our government is trying to prohibit.”

The American Association of Colleges and Universities and dozens of other academic organizations have called efforts to pass this kind of legislation “deeply troubling.”

“Suppressing or watering down discussion of ‘divisive concepts’ in educational institutions deprives students of opportunities to discuss and foster solutions to social division and injustice,” they said in a statement last year. “Legislation cannot erase ‘concepts’ or history; it can, however, diminish educators’ ability to help students address facts in an honest and open environment capable of nourishing intellectual exploration.”

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Write to Katie Reilly at [email protected].

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